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AGLO 1973 No. 86 -
Attorney General Slade Gorton

While a prosecuting attorney who is authorized to have a private law practice may serve, in his private capacity, as legal counsel to represent the interests of a minor or dependent child in marriage dissolution proceedings under chapter 157, Laws of 1973, Ex. Sess., he may not be required by the court as prosecuting attorney to serve in this capacity.
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                                                                  August 1, 1973
Honorable Charles R. Byrd
Prosecuting Attorney
Okanogan County
Okanogan, Washington 98840
                                                                                                               Cite as:  AGLO 1973 No. 86
Dear Sir:
            This is written in response to your recent letter requesting our opinion with respect to the appointment of counsel for minor or dependent children in divorce actions under § 11, chapter 157, Laws of 1973, Ex. Sess.
            We shall state your question and our response thereto in the following analysis.
            Chapter 157, Laws of 1973, Ex. Sess., is a new act relating to the dissolution of marriages.  Section 11, which is pertinent to your question, deals with the representation of minor or dependent children who may be involved in a proceeding for dissolution of a marriage, and provides as follows:
            "The court may appoint an attorney to represent the interests of a minor or dependent child with respect to his custody, support, and visitation.  The court shall enter an order for costs, fees, and disbursements in favor of the child's attorney.  The order shall be made against either or both parents, except that, if both parties are indigent, the costs, fees, and disbursements shall be borne by the county."
            Your question, in essence, is whether the court may require the prosecuting attorney of the county in which the proceeding occurs to serve in the representative capacity contemplated by this statute, and thereby avoid any necessity for the entry of an order for costs, fees, and disbursements in favor of the attorney thus appointed.
             [[Orig. Op. Page 2]]
            As you know, the duties and functions of a prosecuting attorney are set forth in RCW 36.27.020, and none of these duties involves that of representing a minor or dependent child in a marriage dissolution proceeding.  Accordingly, we do not believe that a county prosecuting attorney can be required, in that capactiy, to function under § 11, supra.1/
             On the other hand, of course, RCW 36.27.060 continues to permit the prosecuting attorneys and their deputies of class four and smaller counties to engage in the private practice of law.  If a particular prosecuting attorney is, in fact, so engaged there would, obviously, be no legal objection to his appointment in that private capacity to serve as representative of a dependent or minor child under § 11, chapter 157, supra.  Any order of the court so appointing him in this manner, however, would be required to provide for cost, fees and disbursements as contemplated by the second sentence of this statute.
            We trust that the foregoing will be of some assistance to you.
Very truly yours,
Attorney General
Deputy Attorney General
                                                         ***   FOOTNOTES   ***
1/Note in this regard that RCW 26.08.080, which formerly did impose certain duties upon prosecuting attorneys in connection with divorce proceedings under prior law, has been expressly repealed by § 30 (8) of chapter 157, supra.